By David Loy
I became legal director for the ACLU of San Diego & Imperial Counties in April 2006. In August, Escondido became one of the first cities to propose a ban on renting homes to unauthorized immigrants. So much for a quiet start to the new job.
That autumn, I wore grooves into the freeway as I worked with Escondido community groups, met with residents, spoke at events, and testified against the ban. After the City Council adopted the ban, I led the team that went to court and won an injunction against it.
Since then, I’ve never had to worry about forgetting the way to Escondido. Besides the ACLU’s advocacy for immigrants’ rights and civic participation, I’ve held the city accountable for First Amendment violations such as stifling the right to videotape checkpoints, terminating a social service agency’s contract in retaliation for its speech, and enforcing a restrictive ordinance that stifled rallies and demonstrations.
So when Escondido found itself in the news again last summer for rejecting an application by Southwest Key Programs to house unaccompanied children fleeing violence and persecution in Central America, I can’t say I was surprised.
As I explained to the City Council, Southwest Key is a nationally recognized organization that proposed to take over a vacant property and operate a state-licensed program under contract with the federal government, channeling millions of dollars annually into the community, with no greater impact on land use than the previous skilled nursing facility.
Other cities have welcomed Southwest Key with open arms. Not Escondido. As detailed in our federal court complaint charging the city with discrimination, project opponents complained of its “ghettoization impacts” and the “undesirable taste” it would bring because it would not be “representative of the demographic of the neighborhood.” I’ll leave it to you to decode those comments, which shouldn’t take long.
But some opponents invoked the majesty of the law. The children “have broken our immigration laws.” Don’t “shelter 96 illegal alien children… The laws should be enforced.” The word “illegal immigrant speaks for itself.” We “believe in the rule of the land.”
It can be a seductive argument. Just enforce the law. But it’s not that simple.
First, federal law requires the government to provide housing and care for unaccompanied children until they can be placed with a parent, relative, or appropriate caregiver pending resolution of immigration proceedings. By the way, immigration courts have found when represented by counsel, 73 percent of unaccompanied children have the legal right to remain in the United States.
Second, and perhaps more importantly, “rule of law” can cover a multitude of sins. Certainly, as a civil rights lawyer, I take the law seriously, but law and its uses don’t always translate to justice. After all, Jim Crow wasn’t just a name. It was law—an extensive and detailed code of legal rules for enforcing apartheid in the United States.
Thankfully, Jim Crow laws are officially dead. But their spirit haunts our criminal system and zoning codes, which, as in Escondido, allow cities to deny permits based on incompatibility with “bordering land uses,” creation of “special problems for the area,” or “effect on the community.” It’s easy for terms like that to cover for racial exclusion.
The insistence on enforcing immigration law is also, unsurprisingly, selective. Last time I looked, anti-immigrant protesters weren’t descending on Southie and Woodlawn to call for deporting Irish unauthorized residents.
But they came to Escondido, importuning the City Council to reject Southwest Key’s proposal. The mayor took up their cudgel, claiming Escondido can’t take any more “illegal immigrants” and accusing the ACLU of engaging in “unprecedented aggression on local governments.”
That’s a new one on me, but the mayor and I will have to agree to disagree. When the ACLU comes knocking, it’s not about aggression. It’s about rule of law.